Tribe and Matz Examine Technology and the Supreme Court at Wired

In a recent opinion column for Wired, Laurence H. Tribe and Joshua Matz took an interesting look at the Supreme Court’s views on emerging technology. Tribe, a professor of constitutional law at Harvard University, and Matz, a practicing attorney and former law clerk for Justice Kennedy, examined how those views have led to surprising alliances on particular cases that cannot be explained by the more traditional dichotomy of originalists versus those that view the Constitution as a living document. They also suggest that a judge’s views on technology should be examined when considering prospective judges.

For example, Tribe and Matz describe Brown v. Entertainment Merchants Association, a 2011 case in which the Court examined a California law that required parental approval for the sale or rental of violent video games to minors. The late Justice Scalia, an originalist icon, authored the majority opinion striking down the law. That opinion was surprisingly joined by Justices Kennedy, Bader Ginsburg, Sotomayor and Kagan, who did not typically find themselves on the same side of a case with Justice Scalia due to their differing views on constitutional interpretation. In Scalia’s view, video games presented the same issue as other forms of violent entertainment that were once viewed as potentially harmful to minors, and California’s law was impermissible censorship that violated the First Amendment. Chief Justice Roberts and Justice Alito concurred in the decision, but wrote a separate opinion because they believed that “[t]here are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.” Justice Breyer dissented, citing social science papers that indicated a link between simulated violence and actual violence as justification for the law.

The issue of new technology arose again when the Court heard Maryland v. King in 2013, which examined the constitutionality of a law that required police officers to collect DNA samples from individuals charged with certain crimes. In this case, the Court upheld the law in a 5-4 decision, with the majority opinion authored by Justice Kennedy and joined by Justices Alito, Roberts and Breyer. Although Alito, Roberts and Breyer seemed wary of the effects of new technology in Brown v. Entertainment Merchants Association, they did not appear to have similar concerns in this case. The majority determined that Maryland’s DNA sampling was for the purposes of identification, comparable to photographing and fingerprinting that police typically perform during the booking process. Justice Scalia’s dissent, in contrast, discusses in detail Maryland’s DNA collection process and how that DNA is checked against the FBI’s DNA database (known as CODIS), and uses this discussion to argue that the purpose of Maryland’s DNA collection is not to identify the individual in custody, but rather to check that DNA against unidentified DNA collected at crime scenes.

Occasionally, as Tribe and Matz mention, the Court shares similar views regarding new technology. One example occurred in 2014, when the Court unanimously determined that a warrant is required to examine the digital information on a suspect’s cell phone. The opinion discussed the rapid development of “smartphone” technology and used the huge amount of information that could be obtained from searching a phone and the digital nature of the data to distinguish this type of search from the brief physical searches that the Court had previously approved of in connection with custodial arrests.

According to Tribe and Matz, the Court is likely to encounter new cases involving emerging technology such as 3-D printers, smart-home devices and encrypted cell phones, and their understanding of, and attitude towards, these technologies could have big effects on technological innovation. Instead of limiting our examination of judicial candidates to the traditional debates over originalism, textualism, attitudes toward business or attitudes towards criminal defendants, Tribe and Matz suggest that we should ask how a prospective judge views technological innovation, and should prefer judges that have the capacity (and willingness) to understand the technological issues presented to them.

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